In re Marriage of Fidelman
| Docket Number | D079402 |
| Decision Date | 20 July 2023 |
| Parties | In re the Marriage of KELLY and MARK FIDELMAN. v. MARK FIDELMAN, Appellant. KELLY FIDELMAN, Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County, No. 18FL012451N William Y. Wood, Judge. Affirmed.
Mark Fidelman, in pro. per., for Appellant.
Linda Cianciolo for Respondent.
In October 2018, Kelly Fidelman (Kelly) filed for divorce and requested a domestic violence restraining order (DVRO) against her then-husband, Mark Fidelman (Fidelman). The trial court issued a DVRO in 2018 and renewed the order in March 2020 for one year. The court awarded Kelly attorney fees in March 2021, and in May 2021, the court renewed the March 2020 DVRO and made it permanent.
Fidelman appeals the trial court's 2021 DVRO renewal and fees orders, arguing that the trial court erred by: (1) finding that Fidelman cyberstalked Kelly; (2) relying on Fidelman's litigation conduct as grounds for renewing the DVRO in violation of the litigation privilege (Civ.Code § 47, subd. (b)); (3) finding, by a preponderance of the evidence, that Kelly had a reasonable apprehension of future abuse; (4) excluding testimony from the parties' minor son; (5) infringing on Fidelman's Second Amendment rights by prohibiting him from possessing firearms in the DVRO; (6) authorizing a one-year DVRO renewal in March 2020 when Family Code section 6345[1] provides that "[an order] may be renewed, upon the request of a party, either for five or more years, or permanently . . . "; and (7) awarding attorney fees to Kelly without inquiring about Fidelman's ability to pay.
We conclude that Fidelman has forfeited any challenge to the trial court's findings related to the March 2020 DVRO renewal by failing to appeal that order. Fidelman has also forfeited his arguments regarding the court's reliance on his litigation conduct, his possession of firearms, and his ability to pay the attorney fees award, by failing to raise these issues in the trial court. We further conclude that the trial court had a sufficient basis to find that Kelly had a reasonable apprehension of future abuse. To the extent Fidelman contends that his son's testimony should have been admitted during the May 2021 renewal proceeding, we conclude that the trial court did not abuse its discretion in excluding his testimony. Accordingly, we affirm.
The parties have been engaged in contentious litigation since October 2018, when Kelly petitioned for divorce and requested a DVRO against Fidelman.[2] The trial court issued a temporary DVRO in October 2018, followed by a one-year DVRO issued in November 2018 after an evidentiary hearing. The November 2018 DVRO required Fidelman to relinquish any firearms he had in his possession, as authorized by section 6389, subdivision (a). In May 2019, Fidelman requested a DVRO against Kelly and in November 2019, Kelly requested renewal of her existing DVRO against Fidelman.
After a three-day trial in early March 2020, the court denied Fidelman's request for a DVRO and granted Kelly's renewal request after finding that Fidelman was the primary aggressor in a cyberstalking incident that occurred in October 2019. Specifically, the court found that the parties' minor son took Kelly's laptop computer from her residence while he was under Fidelman's supervision, and that Fidelman viewed and downloaded its contents. Based on that incident, the court found that Kelly proved she had a reasonable fear of continued cyberstalking by Fidelman. The court renewed Kelly's DVRO for another year through March 2021, extending the accompanying requirement that Fidelman not possess any firearms.
Fidelman filed a notice of appeal of the March 2020 DVRO in May 2020, but abandoned his appeal in July 2020. In June 2020 he also requested reconsideration of the March 2020 DVRO renewal, which the trial court denied.[3] Fidelman filed another appeal from the denial of his request for reconsideration, but we dismissed that appeal as untimely.
Kelly requested attorney fees in July 2020 and the court granted her request in March 2021, awarding her $53,120 pursuant to section 6344. Fidelman orally opposed the request at a hearing in March 2021, arguing that he was not served, that the court should inquire about the source of Kelly's legal fee payments, and that proceedings should be stayed pending his appeal of the trial court's denial of his motion for reconsideration of the March 2020 renewal order. In a May 2021 order, the court rejected Fidelman's arguments, finding that Fidelman was served with Kelly's request for fees and that he failed to file a responsive declaration. In awarding fees, the court considered Fidelman's October 2020 income and expense declaration and the fact that he had equity in a marital asset.
Kelly requested renewal of the March 2020 DVRO in March 2021. In April and May 2021, the court heard four days of testimony from the parties and Matt Albee, a computer expert who had previously testified in March 2020 regarding Kelly's laptop.
Kelly testified that she was seeking to renew the DVRO because she felt Fidelman had invaded her privacy, and she worried that he would continue to harass her. In May 2020, Fidelman used a messaging application to tell Kelly that she "could have agreed to a deal that would have saved the kids and [Fidelman] a lot of time and money and aggravation[.]" In June 2020, Fidelman messaged Kelly to ask about what happened to certain furniture. Another time in August 2020, Fidelman messaged Kelly to say that he knew she was not at home, and that she would not be home for two days. Kelly was alarmed by this because she never shared her travel plans with him. When Fidelman sent the above messages, the DVRO limited his communications with Kelly to those regarding custody and visitation only. Receiving those messages made Kelly feel bullied, and like she could not "do anything without [Fidelman] either knowing or giving [her] a hard time about it[.]"
In June 2020, Fidelman also emailed Kelly's employer demanding her employment records and threatening sanctions for non-compliance. In his emails, Fidelman misrepresented a special master's orders regarding the employer's discovery obligations. Fidelman also threatened the employer's in-house counsel with contempt of court, and Kelly's employer subsequently retained outside counsel to respond to Fidelman's subpoenas. Kelly believed Fidelman's actions were negatively impacting her employment and potentially limiting her career advancement.
Albee testified in the 2021 renewal hearing that he felt threatened after Fidelman sent several emails in May 2020 demanding that Albee turn over a copy of Kelly's hard drive after the March 2020 renewal. Fidelman also threatened "legal action" to "collect financial damages" if Albee did not hand over the data, which Albee declined to do. When Kelly learned of Fidelman's attempts to obtain a copy of her hard drive from Albee, she felt harassed, believing that Fidelman was "relentless" and that his attempts to get her data were "never ending." Kelly testified that since March 2020, she had felt "absolutely afraid" of Fidelman and what he would do absent a protection order.
Fidelman testified, among other things, about the messages he exchanged with Kelly after March 2020 and the subpoenas he sent to Kelly's employer. At closing, he argued that Kelly's testimony about fearing harassment lacked credibility. He contended that because there was no evidence of physical abuse, there was no need for a DVRO. Fidelman characterized Kelly's interpretation of his messages as unreasonable, and he further argued that Kelly's fear of negative employment repercussions was unsubstantiated because she presented no evidence of such repercussions happening.
After reviewing the evidence, hearing testimony, and considering the parties' arguments, the court found that Kelly met her burden of showing by a preponderance of the evidence that she had a reasonable apprehension of future abuse. The court began by reminding the parties that it would not permit Fidelman to challenge the truth of the evidence and findings underlying earlier orders. The court also observed that "a party's litigation strategies and tactics may be evidence of inappropriate behavior that may provide grounds" for renewing a DVRO.
The court went on to find that a party need not fear physical abuse to justify renewing a DVRO, and that the nature of the underlying cyberstalking allegations implicated the invasion of Kelly's private, "extremely sensitive information" contained in her laptop. The court credited Kelly's testimony regarding her fear that Fidelman would continue to "stalk her and harass her and disturb her peace." In contrast, the court found Fidelman's testimony lacking in credibility. The court concluded that the prior findings regarding Fidelman's cyberstalking conduct and Kelly's credible testimony were sufficient grounds on their own to support the reasonableness of Kelly's apprehension of future abuse.
However the court found that additional conduct by Fidelman also supported renewing the DVRO. The court determined that Fidelman "clearly misrepresented" a discovery order to Kelly's employer in an attempt to obtain her personal information, which constituted "an outright violation of the restraining order." Similarly, the court found that Fidelman deliberately manipulated and misled Albee in an attempt to obtain a copy of Kelly's hard drive from him, which also constituted a violation of the existing DVRO. The court...
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